Defences - Duress and Necessity

• Introduction
• Availability of the Defence
• Nature of the Defence
• Principle
• The Type of Threat Required
• The Cogency of the Threat
• Nexus between the Threat and the Crime
• Failure to Seek Police Protection against the Threat
• Burden of Proof
• Liability of Secondary Party where the Principal is Subject to Duress
• Voluntary Exposure to Risk of Duress
• Necessity (Duress of Circumstances)

Introduction

This Legal Guidance is intended to assist prosecutors when dealing with suspects/defendants, who seek to rely upon the defence of duress by threats or necessity (duress of circumstances).

It does not cover the statutory defence contained in s.45 Modern Slavery Act (MSA) 2015 for victims of slavery or trafficking who commit an offence. Legal guidance on the s.45 MSA 2015 defence can be found here.

Availability of the Defence

Duress is a defence at common law to all crimes except murder, attempted murder and treason involving the death of the sovereign: R v Gotts [1992] 2 AC 412.

The defence is not available to a person charged with murder as a principal or as an aider, abettor, counsellor or procurer: R v Howe [1987] A.C. 417. It is, however, available on a charge of conspiracy to murder: R v Ness and Awan [2011] Crim L.R. 645.

Nature of the Defence

Principle

There is no definitive statement of the scope of the common law defence of duress. However, a distillation of various authorities has led to the Court of Appeal, in R v Graham, 74 Cr.App.R. 235, posing the following two questions in relation to duress:

1. Was the Defendant impelled to act because, as a result of what he reasonably believed the coercer had said or done, he had a good cause to fear death or serious injury?
2. Have the prosecution proven that a sober person of reasonable firmness, sharing the Defendant’s characteristics, would not have responded in the same way?

The Type of Threat Required

All of the authorities recognising duress as a defence have involved threats of death or grievous bodily harm.

In R v Quayle [2005] 1 All ER 988, it was held that "an imminent danger of physical injury" was required.

A threat of serious psychological injury will not suffice: R v Baker [1997] Crim LR. 497.

The threat may relate to the defendant or a member of his immediate family or alternatively to a person for whose safety the defendant would reasonably regard himself as responsible: R v Wright [2000] Crim. L.R. 510, CA.

The Cogency of the Threat

The fact that the defendant believes that the threat will be carried out if he does not commit the offence is not, of itself, sufficient. This is unless it can be shown that a person of reasonable firmness sharing the characteristics of the defendant would not have yielded to the threat: R v Howe [1987] A.C. 417 HL.

As a result, the defendant's belief in the threat must be objectively reasonable as well as subjectively genuine: R v Hasan [2005] 2 AC 467.

When considering the characteristics of the defendant, pregnancy, serious physical disability or recognised mental illness may be relevant. However, in most cases it is probably only the age and sex of the defendant that is capable of being relevant. Low IQ is not a relevant characteristic, nor is suggestibility/susceptibility to pressure, unless this is as a result of: some mental illness, mental impairment or recognised psychiatric condition: R v Bowen [1996] 4 ALL ER 837.

The reference to a person of reasonable firmness makes it clear that intoxication cannot be a relevant characteristic.

Nexus between the Threat and the Crime

The defence will only be available where the defendant has been subjected to threats directing him to commit a specific crime and he has complied by committing that crime. It is not available where the defendant has committed a crime in order to escape from other unrelated demands. For example, see R v Cole [1994] Crim LR 582, where the appellant borrowed money from a loan shark. The loan shark threatened him and his girlfriend with serious violence, unless he repaid the money. The appellant then robbed several building societies in order to repay the money. The Court of Appeal held that the defence of duress was not available to him as there was not a sufficient nexus between the threat and the crime. The loan shark had not told the appellant to commit a crime in order to repay the money.

Failure to Seek Police Protection against the Threat

It is essential that the threat should have been effective at the time the offence was committed. In R v Hammond [2013] EWCA Crim 2709, the defence of duress was held to have been correctly withdrawn from the jury because the evidence could not satisfy the requirement that the threat must be imminent or immediate and have been operating on the actions which constitute the criminal conduct.

It is always open to the prosecution to prove that the defendant failed to avail himself of an opportunity which was reasonably open to him to render the threat ineffective. Upon that being proved, the defendant can no longer rely upon the threat in question: R v Bianco [2002] 1 Archbold News 2 CA. In R v Hasan [ibid], Lord Bingham stated that if the threat is not such as he reasonably expects to follow immediately or almost immediately upon his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged.

This was confirmed in R v Batchelor [2013] EWCA Crim 2638, when it was held that the defence of duress was correctly withheld from the jury where the defendant could have gone to the police at any time over a period of two and a half years and he could not reasonably believe that the execution of the threat was imminent and immediate.

Burden of Proof

Once the defendant has raised sufficient evidence of duress to allow it to be considered by the magistrates/district judge/jury, the legal burden then falls upon the prosecution to prove beyond reasonable doubt that the defendant was not acting under duress: R v Bone, 52 Cr. App. R. 546 CA.

Liability of Secondary Party where the Principal is Subject to Duress

A secondary party is liable for conviction of the full offence, even if the principal has the defence of duress: R v Howe [1987] A.C. 417 HL.

Voluntary Exposure to Risk of Duress

If a person, by joining an illegal organisation or a similar group of men with criminal objectives and coercive methods, voluntarily exposes and submits himself to illegal compulsion, he cannot rely on the duress to which he has voluntarily exposed himself as an excuse either in respect of the crimes he commits against his will or in respect of his continued but unwilling association with those capable of exercising upon him the duress which he calls in aid: R v Fitzpatrick [1977] N.I.L.R. 20.

Fitzpatrick was cited with approval by the Court of Appeal in R v Sharp [1987] QB 853, where it was confirmed that a defendant cannot rely on the defence of duress if he has voluntarily, by association with others, exposed himself to the risk of such duress (e.g. by joining a criminal organisation or gang).

In R v Z [2005] 2 A.C. 467, the House of Lords stated that the policy of the law must be to discourage association with known criminals, and it must be slow to excuse the criminal conduct of those who do so. It was held that the defence of duress was unavailable when, as a result of the defendants association with others engaged in criminal activity, he foresaw or ought reasonably to have foreseen the risk of being subjected to any compulsion by threats of violence.

Necessity (Duress of Circumstances)

In R v Shayler [2001] 1 W.L.R. 2206, CA at [55], Lord Woolf CJ stated that the distinction between duress of circumstances and necessity has, correctly, been by and large ignored or blurred by the courts; the law has tended to treat duress of circumstances and necessity as one and the same.

The defence has been defined in Stephen, Digest of the Criminal Law, p.9, in the following way:

An act, which would otherwise be a crime, may in some cases be excused if the defendant can show that:

(a) it was done only to avoid consequences which could not otherwise be avoided and which if they had followed, would have inflicted upon him, or upon others whom he was bound to protect, inevitable and irreparable evil;

(b) that no more was done than was reasonably necessary for that purpose; and

(c) that the evil inflicted by it was not disproportionate to the evil avoided.

This definition was approved in Re A. (Children) (Conjoined Twins: Surgical Separation), Re [2001] Fam. 147, HL.

In R v Conway [1989] Q.B. 290, the Court of Appeal held that: "necessity can only be a defence to a charge of reckless driving where the facts establish duress of circumstances, i.e., where the defendant was constrained by circumstances to drive as he did to avoid death or serious bodily harm to himself or some other person. Whether duress of circumstances is called duress or necessity does not matter."

Conway was applied in R v Martin, 88 Cr.App.R. 343, CA where Simon Brown J stated:

Firstly, English law does, in extreme circumstances, recognise a defence of necessity. Most commonly this defence arises as duress, that is, pressure on the accuseds will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called duress of circumstances.

Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.

Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result second, if so, would a sober person of reasonable firmness, sharing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both those questions was yes then the defence of necessity would have been established."

The reference to the sober person of reasonable firmness shows that, as with duress by threats, the crucial question is not whether the defendants actions were justified, but whether he can be excused on the grounds that a reasonable person would have acted in the same way.